To Change or Not to Change: Sunday referendum puts 109 Constitutional Articles in the balance

At polls throughout Armenia Sunday voters will be offered a choice on whether to make changes in 109 of the country’s 117-article Constitution.

The reforms must receive at least 750,000 “yes” votes (one-third of all registered voters) in order to pass. Armenia’s oppositional parties are calling for a boycott of the referendum, hopeful that the new constitution will fail. (See related article.)

Each of the current Constitution’s nine chapters of Basic Law faces change.

The least reformed chapter of the Constitution is that concerning the Foundations of Constitutional Order – changes are proposed to only eight of its 13 articles. All 35 articles of Chapter 2 (Fundamental Human and Civil Rights and Freedoms) are subject to reform by the proposed draft. Only one out of 13 articles remains unchanged in Chapter 3 (The President of the Republic of Armenia). Chapter 4 dealing with the National Assembly carries 22 changed articles, while only one remains unaltered. All of the six articles in Chapter 5 dealing with the Government are proposed to be amended. In Chapter 6 dealing with the judicial power it is proposed to change all 13 articles, as well as all seven articles in Chapter 7 dealing with the local government; three of the four articles in Chapter 8 (Adoption of the Constitution, Amendments and Referendum) are proposed for change. And lastly, all three articles of Chapter 9 dealing with final and transitional provisions are due to be amended by the proposed draft.

Generally, authors of the draft amendments contend that the proposed changes essentially create a system of checks and balances between the branches of power and form a situation in which each branch of the government has to reckon with the opinions of the others. Besides, in their view, the amendments establish an independent judiciary.

As proposed, the draft amendments imply certain restrictions of the current sweeping presidential powers in favor of the parliament, the government and the judiciary. Thus, under the draft amendments put to the plebiscite the country’s legislature gains a decisive role in forming the government – the President appoints the Prime Minister only with the approval of a parliamentary majority (whereas under the current Constitution, the President appoints the PM according to his sole discretion). Besides, the institution of interpellation is introduced, meaning that members of parliament are entitled to challenge and make decisions regarding government actions (such as during Q & A sessions).

Some of the limitations concern the President’s relations with the executive and essentially reduce his powers. By the proposed changes the President’s powers to preside over government sittings are handed over to the Prime Minister and the President does not confirm government resolutions.

By the current Constitution, the President also acts as Chairman of the Justice Council. Meanwhile, the amendments stipulate that this position be held by the Chairman of the Court of Cassation and that the judiciary’s independence be guaranteed by law. (Under the current Constitution, the guarantor of the judiciary’s independence is the President). The creators of the amendments and experts from European agencies engaged in the process say that the influence of the President on the judicial power will be minimized this way.

One of the essential reforms proposed in local government is that Yerevan will receive a community’s status, meaning that its mayor will be elected either directly (popular vote) or indirectly (through elected officials in the city government). Presently, the Mayor of Yerevan is appointed (and dismissed) by the President.

Among the key changes regarding citizens’ rights is the removal of the ban on dual citizenship, and allowing citizens of Armenia to apply to the Constitutional Court after they have exhausted all judicial opportunities (all three court instances). Now, citizens are not allowed to appeal to the Constitutional Court. That right is reserved only for the President, the Government, a collective will of at least 1/3 of Parliament, and MP and Presidential election candidates during campaigns.

Although the President’s powers get restricted, there are several provisions in the draft amendments to the Constitution that arouse a great controversy among the country’s political opposition.

Namely, under Article 56, “the President may not be prosecuted or held liable for actions arising from his/her status during and after his/her term of office. The President may be impeached for state treason or other heavy crimes.”

Article 80 of the amended Constitution vests the president with powers to change Armenia’s borders with the approval of Parliament.

And, finally, the provision that the President cannot be reelected after two consecutive terms, under Article 53.1, “during martial law or state of emergency no elections of the President of the Republic shall be held and the President of the Republic shall continue the discharge of his/her responsibilities. In this case the election of the President of Republic shall be held on the 40th day following the expiration of the term of the martial law or state of emergency.”

Some experts consider that this circumstance may become a serious matter at issue in the visible future. In particular, Director of the Institute of Fundamental Sciences Simon Kamsarakan claims that according to international law Armenia continues to be in a situation of martial law until it signs a reconciliation agreement with Azerbaijan. To further substantiate his position he invokes point 5 of Armenia’s Law on Referendums adopted in 2001 that excludes the holding of referendums in such conditions.

“Our organization has addressed a letter to President Robert Kocharyan informing him that the referendum planned for November 27 is illegal and that any event on amending the Constitution can be held only after a reconciliation agreement is signed,” says Kamsarakan.

Military analyst David Harutyunov strongly opposes the restrictions regarding the presidential powers arguing that they will make the country more vulnerable to external threats in conditions of its factually being at war.

“Let’s not forget that Armenia’s President is also the Commander-in-Chief of the country’s Armed Forces and therefore the restriction of his powers is fraught with real dangers, especially that today many international observers and organizations do not exclude the possibility of renewed active military operations,” Harutyunov says.

And political analyst Armen Poghosyan sees a threat in the country’s moving towards parliamentarianism.

“The amended constitution is a step on the way towards building a parliamentary republic. Meanwhile, the idea about the establishment of a common South Caucasus parliament is being more and more loudly voiced today,” he says. “I think it is a dangerous tendency. It does not proceed from Armenia’s national interests as we had similar precedents in the past – first, in the period of 1917-1918 when the South Caucasus was a common parliamentary state, and later in 1922-36 when there was the so-called Trans-Caucasian Soviet Federation. In both cases Armenia sustained great losses, including the loss of Nagorno-Karabakh in 1923.”

Armen Ayvazyan, doctor of political sciences and lecturer at the American University of Armenia, says that Armenia needs constitutional reforms, but says that no real change in the situation will be achieved unless these reforms are accompanied with progress in the sphere of state governance.

“There are provisions in the amended Constitution that will in one way or another play a positive role in the development of the state. For example, one of such provisions regards the withdrawal of the absurd article banning dual citizenship. The election of Yerevan’s mayor is also a positive step,” Ayvazyan says.

Among those who consider the amended Basic Law to be ‘a step forward’ is also expert in conflict Viktor Solakhyan.

But: “Of course, it is a step forward compared to the previous one. But why should we take only one step forward at a time instead of, say, ten?” he queries.

As a member of the last city council Solakhyan was against stripping Yerevan of the status of a community in 1995 and making the mayor’s post appointed by the President.

“The article regarding the status of Yerevan should have expressly stated that the election of the mayor must be through a direct popular vote,” he argues.

Yerevan is home to nearly half of Armenia’s population and about 60-70 percent of the republic’s production potential is concentrated in the capital city. The expert believes that it is this very circumstance that makes the authorities fearful that election of Yerevan’s mayor in such conditions should be perceived as equal to electing the republic’s President.

Among the most contestable articles is also Article 35 dealing with the family.

Head of the Governmental Department for National Minorities Affairs and Religion Hranush Kharatyan thinks that some wordings in the amendments need specifying.

“In my opinion, the amended Constitution most clearly regulates relations between the branches of power and sets clear terminology in the sphere of human rights,” she says. “However, there are problems in the article dealing with the family. As for issues of religion and national minorities, terminologically these articles are better worded and specified in accordance with the spirit of the time.”

Khachik Stamboltsyan, a member of the Board of the “Christians Against People’s Numeration” public organization, claims that Article 35 reads ambiguously.

“There are several points in the proposed changes that reduce the whole Constitution to naught. Thus, Article 35, in my opinion, contains immoral implication, as, in fact, it does not legally exclude same-sex marriages,” he claims.

In particular, the part of the article that, according to him, leaves room for interpretation is as follows: “…Men and women of marriageable age have the right to marry and found a family according to their free will. They are entitled to equal rights as to marriage, during marriage and divorce.”

Ardent anti-gay activists claim that the article should have stated more clearly that marriage is between men and women only.

Meanwhile, the advocates of the change reject these claims as groundless and for greater sureness some even cite the sentence that expounds this provision, explaining what a family is: “The family is the natural and fundamental cell of the society.” – With the word “natural” being underscored.